El Achkar v The Queen - [2016] VSCA 209

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0035

MOHAMMED EL ACHKAR	Appellant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL ACJ and WEINBERG JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 August 2016
DATE OF ORDERS:	18 August 2016
DATE OF REASONS:	2 September 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 209
JUDGMENT APPEALED FROM:	[2016] VCC 34 (Judge Mason)

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CRIMINAL LAW – Appeal – Sentence – Trafficking in methylamphetamine – Two transactions – Relatively small quantities – Sentence two years and eight months’ imprisonment, non-parole period 16 months – Whether manifestly excessive – Whether unreasonable disparity with co-offenders’ sentences – Exceptional evidence of rehabilitation – Whether combination sentence within range – Crown concession of error – Appeal allowed – Resentenced to eight months’ imprisonment with two year Community Correction Order.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr T Kassimatis	Grigor Lawyers
For the Respondent	Mr G J C Silbert QC	Mr J Cain, Solicitor for Public Prosecutions

MAXWELL ACJ
WEINBERG JA:

Summary

The appellant was sentenced in the County Court on two charges of trafficking in methylamphetamine. In each case, the trafficking was constituted by a single transaction, involving a small quantity of the drug.

On one charge of trafficking (to which he had pleaded guilty), he was sentenced to 18 months’ imprisonment. On the second charge (of which he was convicted after a trial), he was sentenced to two years’ imprisonment. Eight months of the sentence imposed on the first charge was cumulated, producing a total effective sentence of two years and eight months’ imprisonment. A non-parole period of 16 months was fixed.

Leave to appeal was granted on a parity ground. That is, it was contended that the sentence imposed on the appellant was far higher than could have been reasonably justified having regard to the sentences imposed on his co-offenders, whose trafficking activity was much more extensive and involved larger quantities. By leave, a further ground — of manifest excess —was added.

As will appear, the Crown ultimately conceded that the sentence imposed on the appellant was manifestly excessive, having regard to the limited nature of his trafficking and the unusually strong evidence of his rehabilitation. We concluded that the concession was appropriate and ordered that the appeal be allowed.

We resentenced the appellant to a combination sentence, comprising the approximately eight months’ imprisonment already served and a Community Correction Order (‘CCO’) for a period of two years, with conditions requiring assessment and treatment for drug abuse or dependency. As will appear, our resentencing decision took account of the sentences imposed on the co-offenders. Our reasons for that decision follow.

We wish to acknowledge the scrupulously fair manner in which the Crown has approached this matter. On the leave hearing, the Crown first conceded that the parity ground was reasonably arguable. Then, having noted the strong evidence of the appellant’s rehabilitation, counsel for the Crown suggested that an additional ground of manifest excess would enable the merits of the appellant’s position to be…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading El Achkar v The Queen

Details

AGLC: El Achkar v The Queen [2016] VSCA 209
Case: [2016] VSCA 209
Decision Date: 2 September 2016

CaseChat Overview and Summary

El Achkar was convicted of trafficking in methylamphetamine following two transactions involving relatively small quantities of the drug. He appealed against his sentence, which was two years and eight months’ imprisonment, with a non-parole period of 16 months. The primary issues before the court were whether the sentence was manifestly excessive and whether there was an unreasonable disparity with the sentences of his co-offenders. Additionally, the court considered the exceptional evidence of rehabilitation presented by El Achkar and whether the combination of the sentence and a community correction order was within the appropriate range.

The court found that the original sentence was indeed manifestly excessive, taking into account the relatively small quantities of drugs involved and the exceptional evidence of rehabilitation. The court also noted that the disparity between the sentences of El Achkar and his co-offenders was significant. The Crown conceded an error in the original sentencing, which further supported the appeal. Consequently, the appeal was allowed, and El Achkar was resentenced to eight months’ imprisonment with a two-year community correction order.

The court’s reasoning was grounded in the principle that sentences should be proportionate to the crime and reflect the offender’s potential for rehabilitation. Given the evidence presented, the original sentence did not adequately consider these factors. The court emphasised the importance of rehabilitation and proportionality in sentencing, leading to the reduction of the custodial sentence and the imposition of a community correction order.

The final orders of the court were that El Achkar’s sentence be reduced to eight months’ imprisonment, to be served concurrently with a two-year community correction order. This outcome reflected a more appropriate balance between punishment, deterrence, and the potential for rehabilitation.

Orders